59 Tex. Civ. App. 198 | Tex. App. | 1910
The appellees are the surviving widow and children of Charles Lanier, who was killed in a collision with a street ear in the city of Texarkana on April 24, 1907. The appellants are the company that owned and operated the street car-line at the time, and the motorman who was in charge of the car that ran over and killéd deceased. The suit is to recover damages for the death of Lanier. A trial in the court below resulted in a verdict against the appellants for $10,000.
The testimony showed that Lanier was struck and killed at a point where Fourth Street, the one occupied by the car line, was intersected -by Congress Street. Fourth Street runs east and west, and Congress Street north and south. The car was going east, and Lanier approached from the south. Two vehicles going in opposite directions met just east of the east line of Congress Street, so that the rear of the one going east was about on a line with that side of Congress Street. The drivers of the vehicles stopped them at that point for the purpose of permitting the street car, which they saw approaching, to pass, the space between the sidewalk and the car line being too narrow to permit passage without one or the' other going upon the car line. The animal hitched to the vehicle going west, meeting the car, appears to have attracted some attention on account of his indisposition to stand still. The distance from the south side of Fourth Street, including the sidewalk, to the south rail of the car line was about twenty-seven feet, the space occupied by the sidewalk at that place being unusually wide and upon an elevated portion of the ground. There was nothing in this space between the south side of Fourth Street and the car to obstruct Lanier’s view of the car, or the motorman’s view of him while in that space. It seems that as Lanier approached the track he was looking at the restless horse, and did not notice the car. The witnesses differ as to the distance he was from the car when he stepped on the track; one of them testified that the car was six or eight feet away; others say the distance was shorter. The motorman testified that he was running the car at about five or six miles per hour; that he rang his bell when about 100 or 150 feet west of the junction of the two streets, the point where Lanier was killed; that he did not ring it again because his attention had been attracted to one of the horses above referred to, which appeared to be restless, and he thought it probable that it might be frightened by the noise of the bell. He also says he did not see Lanier till the latter stepped upon the track about five or six feet in front of the car; that he then did not ring the bell because he did not have time, but did
The only grounds of negligence submitted by the court were those based upon discovered peril. There was testimony tending to show that, considering the rate of speed at which the car was traveling, it could have been stopped within the distance intervening between it and Lanier after he got on the track, or its speed so checked that injury might have been avoided. The testimony also justifies the conclusion that the motorman could and probably did see Lanier before he got upon the track and while he was approaching it, it being reasonably evident that Lanier must have passed directly between the motorman and the vehicle which he asserts he was observing.
In view of the fact that this judgment must be reversed upon other grounds, it will not be necessary to discuss the assignments questioning the sufficiency of the evidence, or that complaining of the verdict as being excessive.
At the inquest held over the body of Lanier, Maddox, the motorman, made the following statement, which was reduced to writing and signed by him:
“E. C. Maddox, being duly sworn by me, testified as follows: At about 6:12 p. m. on the 24th day of April, 1907, car Ho. 1, owned and operated by the Texarkana Gas & Electric Company, and which car was in my charge as motorman, ran over Thomas G. Lanier and drug him about a car length. The point at which the car ran over him was at the corner of Congress Avenue and 4th Street, in Texarkana, Bowie County, Texas. I was running the car at a speed of from' seven to eight miles an hour and was running at this speed, which is about four miles per hour under the usual speed, because I noticed a buggy going east and a buggy going west and they met right at the crossing and a man stepped right out from behind the buggies and attempted to cross in front of the car and I was in three or four feet of him before I saw him and was unable to control the car in time to keep from running over him in that distance, and I used every effort in my power to prevent the accident. He was going north when the car struck him, he was in the middle of the track and ran directly over him. My car had a fender on it, but apparently did no good, for the reason that at the place where he was run over the dirt between the rails had been washed out and when he was knocked down the fender was then for this reason too high to lift him off the track' and failed to afford any protection whatever.
“Have had about one year’s experience in running electric cars and our particular instructions are to keep a good lookout in front. My experience is that a car running from seven to eight miles an hour can not be stopped under thirty-five feet and in this distance, as the brakes were partly set, I rang the bell and reversed the car and*202 threw the brakes fully on, which was all that I could have possibly done.
“He was not killed outright, but was taken up by the barnman, who lives at College Hill, in Texarkana, Ark., and carried to the sidewalk. I came in after the ambulance and he was carried to his home. Dr. Beck was called and attended upon the injured man from the track to the house. I was told that Mr. Lanier died about an hour after he was run over by the car.
“(Signed) E. C. Maddox.”
On the trial in the District Court Maddox was subjected to a rigorous cross-examination regarding his statements made at the inquest, and his attention was called to the discrepancies between those statements and his testimony given upon the trial. It appears from the record that there had been a previous trial in the court below, in which Maddox’s testimony was taken down by the court stenographer; and upon the trial from which this appeal is prosecuted the stenographer’s report was used, Maddox not appearing in person. The variance between Maddox’s testimony at the inquest and that given upon the trial appears to be mainly as to the rate of speed at which the car was traveling and the ringing of the bell. The witness admitted making the statements at the inquest, and gave his own explanation of the variance, saying that he was in error when testifying on that occasion. After the defendants in the court below had concluded their testimony, the appellees offered in evidence the written statement containing Maddox’s testimony at the inquest. This was admitted over the objection of the appellant, Texarkana Gas & Electric Company. The action of the court in admitting this testimony is assigned as error. In this connection complaint is also made of the following portion of the court’s charge: “Plaintiffs in this case read in evidence the written evidence of E. C. Maddox taken at the inquest trial held by the justice of the peace over the body of said Lanier. This is original evidence as against the defendant, Maddox, and may be so considered by you. But this evidence is not original evidence as to the defendant company, and can’t be so considered by you. But if you believe that said evidence of Maddox differs from his evidence as given by him on this trial, and contradicts or tends to contradict his evidence, then I charge you that you may consider such evidence of said Maddox at the inquest in passing on his credibility as a witness in this case and weighing his evidence, but you can consider it for no other purpose as to the defendant company.” In offering this testimony the appellees did not specify the purpose for which it was intended. The charge of the court would seem to indicate that it was offered both as substantive evidence against Maddox, one of the parties to the suit, and also for the purpose of impeaching him as a witness. We fail to see how its introduction would tend to establish any ground of negligence relied upon for a recovery not fully and completely covered by other testimony about which there was no dispute. Hpon the issue of discovered peril it seems to us that it weakens rather than strengthens the plaintiffs’ cause, in that
The fourth and fifth assignments of error object to certain portions of the court’s charge as being upon the weight of the evidence in assuming that Maddox, the motorman, realized the danger of Lanier before he was struck and while approaching the track, and also while on the track in front of the car. We think the charge subject to the criticisms urged. This objection should be avoided upon another trial.
The remaining assignments do not require discussion, and are overruled. But for the errors pointed out the judgment of the District Court is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.
The appellees have filed a lengthy motion for a rehearing, in which counsel have ably and exhaustively discussed the grounds upon which the reversal of the judgment of the court below was placed. We have again given those questions a careful consideration, and are unable to discover any good reason or judicial authority for reversing our former holding. It may be that in stating the views of the court the writer did not make them as clear as he should have done, and that this has to some extent detracted from the weight of the reasons governing the court’s conclusions.
As before stated, we think the written testimony of Maddox given at the inquest was not, under the circumstances attending this trial, admissible. Still, its admission alone might not justify a reversal of the judgment. The discussion of this question in the appellees’ argument proceeds upon the assumption that the written instrument
But passing to the consideration of the objection to the court’s charge from another standpoint, and the one discussed to some extent in the original opinion, we think the appellants were prejudiced by the effort to limit the consideration which the jury might give to this inquest testimony. As a general rule, trial courts have no right to refer in their charges to the testimony of any particular witness, or to the testimony as to any isolated fact, or group of facts, unless this becomes essential to the protection of some right of one or more of the parties to the suit. Violations of this rule are usually condemned as charges upon the weight of the evidence. The necessity for the rule is founded upon the fact that the testimony which is limited to a particular purpose is legally incompetent for any other, but in the minds of uninformed jurors may tend to establish other and material issues, to the detriment of the opposite party. The most common application of the rule occurs in cases where testimony incompetent for any other purpose is offered for the impeachment of a witness. There is another rule equally as important and as universally enforced as the one above mentioned, and that is that variant statements can not be used for purposes of impeachment unless they refer to material issues involved in the case on trial. While the mere fact that a witness has made conflicting statements on different occasions might ordinarily impair his credibility, it would not be permissible to attack his credit by merely showing that he made a conflicting statement, without reference to its materiality. If the conflicting evidence admissible for impeaching purposes must be material to the issues in controversy, then it logically follows that it might tend to prove some material issue for which it could not be legally employed. Thus it will be seen that the exception which permits a departure from the general rule, regarding references to the evidence in the charge of the court, is founded upon an essential duty—that of protecting the opposite party from the illegitimate consequences of testimony otherwise material and relevant. Clearly, then, where the conditions calling for the exception are absent the general rule should be observed, and the jury permitted to exercise its own judgment in considering the testimony. The authority to specifically refer to and direct the use to be made of particular evidence is the product of, and is commensurate only with, the right of the opposite party to this protection against its practical, but illegitimate, tendencies. Neither of the appellants sought to’ have this testimony so limited, and without any request upon their
Counsel for appellees insist with much earnestness that the effect of this inquest evidence was damaging to the defense urged by the appellants. We do not agree to this contention. There was not a fact in it which in any way affected the defense that was not established beyond dispute by the witnesses for the defendants before this instrument was offered. As before stated, so far from operating to the prejudice of the defendants, we think it tended to strengthen their defense upon the very question in issue. They had nothing to lose, but everything to gain, by having the jury consider it generally for all purposes. On the contrary, they had everything to lose and nothing to gain by having its consideration restricted to impeaching purposes. The importance of Maddox as a witness in this case was such that the jury could not have returned the verdict it did without disregarding his testimony in every essential respect. In view of the slender margin of evidence upon which this judgment can be supported, we think only a slight deviation from the rule prohibiting a charge upon the weight of the evidence sufficient to justify, if not to require, a reversal. It might be that upon other issues which the court did not submit a stronger case upon the facts might have been presented, but that question is not before us.
It is unnecessary to discuss the other question upon which the reversal of the judgment was based. Speaking for himself alone, the writer is frank to admit that reversing judgments upon the grounds last referred to in the original opinion is justified more upon precedents established by the courts of last resort than upon any sound principle. The motion is overruled.